Sacramento Personal Injury Lawyer Blog

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/personal injury case and its proceedings.)

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser, U.C. Davis Medical Center, Mercy, or Sutter.

As set forth below, the development of pressure ulcers in this paraplegic patient was not the result of an isolated episode of inadvertence by a Nationwide Hospital employee. Rather, this entirely preventable injury was caused by repeated episodes of neglect over a period of days by multiple employees of Nationwide Hospital.

In order to be entitled to enhanced remedies, plaintiff must prove that the defendant acted with recklessness, i.e. engaging in conduct while appreciating the probability that the conduct would cause harm. The First Amended Complaint sets forth facts alleging such conduct on the part of managing agents of its acute care hospital. They describe a systemic breakdown in the carrying out of well-established pressure ulcer prevention protocols by multiple caregivers over multiple days. That breakdown is alleged to have been caused by improper training, improper supervision, improper chart review, improper competency assessment and/or improper staffing levels, or a combination of these factors.

The fact that an extremely vulnerable and virtually helpless patient was permitted to develop pressure ulcers is all the more culpable because pressure ulcers are preventable without extraordinary effort on the part of an acute care hospital The development of Stage 3 or 4 pressure ulcers at an acute care hospital has been categorized by the Centers for Medicare and Medicaid Services (CMS) as a Never Even because they are reasonably preventable through application of evidence based guidelines. Centers for Medicare & Medicaid Services Program, Changes to the Hospital Inpatient Prospective Payment Systems and Fiscal Year 2008 Rates; Final Rule ; Federal Register (2007) 72(162); 47130-48175.

Continue reading " Paraplegic Sacramento Woman Suffers Elder Abuse And Reckless Neglect At Hospital, Part 6 of 6 " »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/personal injury case and its proceedings.)

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser, U.C. Davis Medical Center, Mercy, or Sutter.

Physicians and other health care providers, as well as hospitals, can be held liable under the elder abuse statutes. That was the holding in Mack v. Soung (2000) 80 Cal.App. 4th 966. Such persons have "care and custody of an elder" within the meaning of the elder abuse statutes when they undertake to care for an elder. The court summed up its holding as follows:

Delaney establishes that health care providers are not exempt from liability for reckless neglect simply because the cause of action arises from the rendition of health care services. Mack v. Soung, supra, at 974.

Each of the required elements of proof to support a claim for reckless neglect of an elder is set out in the First Amended Complaint and is supported by specifically alleged facts. Those allegations together may be summarized as follows:

Katy Smith, an elder and dependent adult within the meaning of the Elder Abuse Statutes (W&I Code §15600 et seq.), was admitted to Nationwide Hospital on September 25, 2007. She was diagnosed with a cervical spine fracture. Ms. Smith had pre-existing paraplegia. For this reason and because she had a neck fracture, she was at high risk for the development of pressure ulcers.

Continue reading " Elder Abuse Of Sacramento Hospital Patient After Neck Fracture, Part 5 of 6 " »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/personal injury case and its proceedings.)

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser, U.C. Davis Medical Center, Mercy, or Sutter.

ARGUMENT

Law Applicable to Demurrers

It is axiomatic that a demurrer does not test the sufficiency of evidence or other extrinsic matters. Four Star Electric v. F&H Construction (1992) 7 Cal.App. 4th 1375, 1379, The only issue for the Court to resolve on demurrer is whether the complaint, as it stands, unconnected with extraneous matter, states a cause of action. Gervase v. Superior Court (1995) 31 Cal.App. 4th 1218, 1224. The court’s function on demurrer is to treat properly pleaded facts as true without consideration of whether they are provable or not. Ibid.

While these rules of determining a demurrer are well known, it is often valuable to remind the moving party of them. In the case at bar, if each properly pleaded fact of elder abuse in the First Amended Complaint were stipulated to be true, the defendant could not argue that the plaintiff would not be entitled to a verdict under the Elder Abuse Statutes. This is another way of expressing the standard for judging a demurrer. When properly viewed in this way, it is plain that defendant's demurrer is without merit.

Plaintiff Has Pleaded Facts Sufficient to State a Cause of Action for Reckless Neglect of an Elder

Defendant concedes that a cause of action for elder abuse under California Welfare and Institutions Code §15600 et seq., is a separate and distinct claim from medical negligence.

Continue reading " Elder Abuse Of Woman At Sacramento Healthcare Facility, Part 4 of 6 " »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/personal injury case and its proceedings.)

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser, U.C. Davis Medical Center, Mercy, or Sutter.

The repeated failure of the staff to follow well-known protocols for the prevention of pressure ulcers and other conditions to which Katy was susceptible is a gross departure from any standard of care and is evidence of a reckless disregard of health and safety of patients by the managing agents, officers, owners and operators of defendants.

Further allegations of reckless institutional neglect are set out in the complaint, wherein it is alleged that managing agents of Nationwide Hospital, including the Administrator and Director of Nursing, consistently failed to properly train the nursing staff, repeatedly failed to engage in chart review to assure that proper care planning and treatment was occurring, repeatedly failed to assess the competency of the nursing staff and knowing of the neglect of Ms. Smith, took no remedial action.

The complaint further sets out duties which Nationwide Hospital was required to carry out but failed to do so with references to State and Federal regulations. The breaches of duty all relate to the failure to properly initiate a care plan and carry out a care plan to protect Katy Smith from compromise to her health and safety, i.e. the development of pressure ulcers.

Continue reading " Nursing Neglect Leads To Elder Abuse Of Sacramento Woman, Part 3 of 6 " »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/personal injury case and its proceedings.)

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser, U.C. Davis Medical Center, Mercy, or Sutter.

FACTUAL ALLEGATIONS OF THE FIRST AMENDED COMPLAINT

The First Cause of Action details the facts which would support a verdict for reckless neglect of an elder on the part of Nationwide Hospital.

It is alleged that Katy was a patient under the care of Nationwide Hospital from September 25, 2007 through October 4, 2007, with a diagnosis of neck fracture. It is further alleged that Ms. Smith suffered from pre-existing paraplegia and, while at Nationwide Hospital, she was plainly dependent upon Nationwide Hospital for virtually all activities of daily living. The complaint goes on to allege that because of Ms. Smith's condition, Nationwide Hospital knew that she was at high risk for the development of pressure ulcers and that, if they were allowed to develop, they would be difficult to treat because of Ms. Smith's bed-bound status and that there was a significant risk of serious consequences from their progression.

The First Amended Complaint with specificity alleges that the nurses at Nationwide Hospital knew or were obligated to know that Ms. Smith was required to be repositioned at a minimal interval of every two hours in order for a proper ulcer-prevention care plan to be carried out.
Rather than turning and repositioning Katy every two hours consistently throughout her admission, multiple members of the nursing staff did not turn her at such intervals and did not turn or reposition for periods of 3 hours, 4 hours, and 7 hours at various times during her stay. As a result of said repeated neglect, Katy developed pressure ulcers.

Continue reading " Reckless Neglect At Sacramento Hospital Results In Elder Abuse Action, Part 2 of 6 " »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/personal injury case and its proceedings.)

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser, U.C. Davis Medical Center, Mercy, or Sutter.

Plaintiff Katy Smith’s Memorandum of Points and Authorities in Opposition to Defendant Nationwide Hospital and Clinics' Demurrer to Plaintiff's First Amended Complaint

INTRODUCTION

Defendant Nationwide Hospital demurrers to plaintiff's First Amended Complaint on the basis that it fails to plead sufficient facts to support a claim for reckless neglect of an elder in violation of California’s Welfare & Institutions Code §15600 et seq.

Defendant's demurrer is without merit and is of a type filed as a matter of course in virtually all elder abuse cases. Its principal purpose is to add a burden to plaintiffs bringing such cases which was not intended by the legislature. In point of fact, the legislature in §15600 of the Welfare & Institutions Code expressed as its purpose in enacting the Elder Abuse Statutes to encourage lawyers and others to take up the cause of the neglected elderly because representation had been difficult to obtain previously due to the vagaries of the law.

Plaintiff’s pleading in the case at bar is far more particular in its factual pleading than would be required under standard notice pleading rules. It alleges facts and includes specific charging allegations which if supported by evidence at trial would justify a verdict in plaintiff's favor on a cause of action for reckless neglect of an elder.

Continue reading " Sacramento Woman Sues Hospital For Elder Abuse, Part 1 of 6 " »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this slip and fall/personal injury case and its proceedings.)

Plaintiff's Claim for Emotional Distress Damages Cannot be Bolstered With Evidence of Her Husband's Rare and Potentially Fatal Lung Disease

Plaintiff seeks to introduce evidence that her husband was diagnosed with a rare lung disease in June 2005 that either will require a lung transplant or may be fatal to bolster her claim for emotional distress damages as a result of the injury she sustained in her fall. Little is known about plaintiff's husband illness for several reasons, not the least of which is that he is not a part to this lawsuit and, therefore, no discovery has been conducted on the illness. We do know from plaintiff's deposition testimony and recent reports from counsel that plaintiff's husband has been able to work to date.

Specifically, plaintiff claims that the illness bolsters the emotion distress associated with her injury because she now has been told that she can no longer work as a dental hygienist, and she may some day need to support her three young children alone without relying on her chosen profession. Despite the parties best efforts to meet and confer over this issue, discussions which resulted in a stipulation to exclude much evidence at trial, this issue remains in dispute.

Evidence of plaintiff's husband's unfortunate illness should be excluded at trial. Not only is the health of this nonparty irrelevant to the issues in this case, there is no foundation for the evidence, since plaintiff has not designated the requisite expert to testify about the rage lung disease.

Continue reading " Woman From Sacramento Files Premises Liability Lawsuit For Slip And Fall At Hotel, Part 8 of 8 " »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this slip and fall/personal injury case and its proceedings.)

ABC HOTEL DISPUTES THE EXTENT OF PLAINTIFF'S CLAIMED INJURY AND DAMAGES

Expert discovery has not been completed for good reason. The parties have continued to work together to obtain all of the records from University Medical Center where plaintiff not only sought a second opinion and underwent additional surgery and treatment, but where she continued to participate in physical therapy for her hand and wrist. Although some records were obtained from UMC (after months of delay), those records referenced additional records that were not produced by the Medical Center. Consequently, an additional subpoena was required.

These records are critical from the defense perspective since they will provide insights into how plaintiff is progressing with the use and function of her left wrist and hand, particularly given her new claim that she can never again work as a dental hygienist. Moreover, both plaintiff's and ABC Hotel's experts will rely on the additional records requested from University Medical Center, and therefore, expert depositions cannot take place before those records are obtained.
However, subject to expert testimony, ABC Hotel anticipates that it will dispute the extent of the injuries and damages alleged by plaintiff.

Plaintiff's Claimed Residual Pain Is Not the Result of the Injury She Sustained in Her September 2005 Fall

Following surgery to repair her broken wrist, plaintiff's fracture was well healed. As a result, her subjective complaints of residual pain and discomfort are unusual based on the proper repair and healing of this type of fracture and lack of objective findings. Indeed, there is no record of swelling and no redness in the area of the fracture. In addition, there is no need for further treatment, and plaintiff's symptoms should resolve with the passage of time.

Continue reading " Sacramento Hotel Guest Sues Under Premises Liability For Injuries, Part 7 of 8 " »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this slip and fall/personal injury case and its proceedings.)

In Delk v. Mobilehomes, Inc. (1953) 118 Cal.App.2d 529, the plaintiff was injured while doing work underneath a mobile home belonging to the defendant. A support jack had given way on account of damp ground conditions, leading to the lowering of a support beam which thereby struck plaintiff. The trial court directed a verdict in favor of the defendant, and the Court of Appeal affirmed. The Court held that the ground conditions were open and obvious, and that defendant was not liable for injuries therefrom. The Court held (at 532-533):

An invitor is not required to give an invitee warning or notice of obvious danger but is entitled to assume that the invitee will perceive that which would be obvious to him upon the ordinary use of his own senses.

In Powell v. Stivers (1951) 108 Cal.App.2d 72, the plaintiff tripped and fell over an electrical cord lying on the floor, nestled between a piano and the wall. The plaintiff filed suit against the building owner, claiming that the owner had a duty to warn of or remove the cord from the ground. Defendant moved for a nonsuit, which the trial court granted. The Court of Appeal affirmed, finding that the defendant could not be held responsible for a condition that would be apparent to others, and that the electrical cord was patent, an open and obvious danger. Id. at 73-74.

Based on well-established precedent, ABC Hotel owed no duty to warn plaintiff of the location of her and her companions' seven to eight pieces of luggage because they were open and obvious to any reasonable person using reasonable care to observe their environment (e.g. watching where one is walking). The accident occurred at approximately 4:30 p.m. of a summer afternoon in September (pre-daylight savings change).

Continue reading " Premises Liability Suit Filed Against Sacramento Hotel, Part 6 of 8 " »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this trip and fall/personal injury case and its proceedings.)

The law involving trip and fall actions is well settled, and in fact most of the recent published decisions in this area have been made after summary judgment or as matter of law. For example, in Danieley v. Goldmine Ski Associates, Inc. (1990) 218 Cal.App.3d 111, the plaintiff was injured after skiing down a slope, falling, and sliding into a tree. The plaintiff sued for premises liability, alleging that the defendant had either a duty to warn of the tree, or a duty to remove the tree. The defendant filed a motion for summary judgment on the ground that it owed no duty to warn of, or cure, dangerous conditions which were open and obvious. The trial court granted the motion, and the Court of Appeal affirmed. The Court held as follows (at 121-122):

Because the possessor or operator of a given premises is not an insurer of the safety of invitees onto his premises, he is entitled to assume that any such invitee will perceive that which is obvious to him in the ordinary use of his senses ... [Defendant] was under no duty to warn that this particular tree ... presented a danger to plaintiff wife. The tree itself provided a warning to plaintiff of the implicit danger of a collision with it. A fortiori, [defendant] was under no duty to remove it.

In Curland v. Los Angeles County Fair Assn. (1953) 118 Cal.App.2d 691, the plaintiff was injured after tripping over a pipe about one inch in diameter and protruding 7-10 inches above the ground. The plaintiff did not look down at the ground at any time before he fell.

Continue reading " Sacramento Woman Injured In Hotel Trip And Fall Files Suit, Part 5 of 8 " »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this trip and fall/personal injury case and its proceedings.)

The Luggage Was Open And Obvious

There is no duty on behalf of the property owner to warn of or repair a condition that is open and obvious to the reasonable person. Hanson v. Luft (1962) 58 Cal.2d 443, 445 [duty to warn of defects not applicable where defect open and obvious]; Lucas v. George T.R. Murai Farms, Inc. (1993) 15 Cal. App. 4th 1578, 1590-1591 [where danger was obvious, no duty to warn or to make property safe]; Haberlin v. Peninsula Celebration Assn. (1957) 156 Cal.App.2d 404, 408 [same]; Krognos v. Pacific Gas & Electric Company (1992) 7 Cal.App.4th 387, 393 [ if a danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty to remedy or warn of the condition ]

DeRoche v. Commodore Cruise Line, Ltd. (1994) 31 Cal.App.4th 802, 810 [ it is settled that there is no duty to warn of a danger that is as obvious to the injured party as to the defendant ]; Marshall v. United Airlines (1973) 35 Cal.App.3d 84, 90 [ it is established law, at least in the exercise of ordinary care, that one is under no duty to warn another of a danger equally obvious to both. ] As one learned author explained:

[I]f the danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning. (See, 6 Witkin, Summary of California Law (9th ed.) Torts, § 930, p. 301.) (See Part 5 of 8.)

Continue reading " Hotel's Dangerous Condition Leads To Sacramento Woman's Trip And Fall, Part 4 of 8 " »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this trip and fall/personal injury case and its proceedings.)

ABC HOTEL IS NOT LIABLE FOR PLAINTIFF'S FALL OR HER INJURY

ABC Hotel Owed No Duty To Warn Plaintiff Of The Location Of Her And Her Companion's Luggage In The Hotel Suite

The duty to warn extends only to those conditions (1) which are dangerous and (2) which the defendant created or which the defendant had control over and sufficient notice in advance of any accident. Ortega v. Kmart Corporation (2001) 26 Cal.4th 1200, 1212. The duty to warn does not extend to conditions which are open and obvious. Daniely v. Goldmines Ski Associates, Inc. (1990) 218 Cal.App.3d 111, 121.

The Stack Of Luggage Did Not Constitute A Dangerous Condition

Slips, trips and falls "are not so likely to be the result of negligence as to justify a presumption to that effect." Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 826; Akins v. County of Sonoma (1967) 67 Cal.2d 185, 195. It is, therefore, incumbent upon plaintiff to.prove, as an essential element of her claim, that the condition upon which she fell was dangerous or defective. Laird v. T. W. Mather, Inc. (1958) 51 Cal.2d 210, 220.

A condition is considered dangerous or defective only if it presents an unreasonable risk of harm to persons using the premises in a foreseeable manner. Akins, supra, 67 Cal.2d at 193; BAJI 8.21. In other words, a dangerous condition must be one which a person of ordinary prudence should have foreseen would appreciably enhance the risk of harm. Constance B. v. State of California (1986) 178 Cal.App.3d 200, 209.

Continue reading " Sacramento Hotel Fights Liability For Guest's Trip And Fall Injury, Part 3 of 8 " »